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PAGE 6—NOVEMBER 1955—SOUTHERN SCHOOL NEWS
Texas Supreme Court Knocks Out School Segregation Law
AUSTIN, TEXAS
r J'HE TEXAS Supreme Court has
ruled that schools may proceed
with desegregation, without regard to
state laws.
It declared invalid provisions of the
state constitution and the school laws
which require racial segregation. This
came in the Big Spring case (R. E.
McKinney et al v. W. C. Blankenship
et al) where the district authorized
Negroes to attend White elementary
schools.
Twenty-one Negroes were eligible
to attend the white schools at Big
Spring. Seven actually enrolled and
14 chose to attend the segregated
Negro school.
Big Spring is one of 65 districts
which started integration in Texas
this fall. Unofficial estimates indicate
that between one and two per cent
of the state’s Negro scholastics are
affected by these orders.
The test at Big Spring was filed by
four citizens, one of them a school
trustee, and by the Texas Citizens
Council, a pro-segregation group.
Ross Carlton, Dallas attorney and
head of the Council, represented the
plantiffs in the Big Spring lawsuit.
‘NO SPEED-UP’
Gov. Allan Shivers and Atty. Gen.
John Ben Shepperd made public
statements pointing out that the state
Supreme Court’s decision does not
call for any speed-up of desegrega
tion.
The state court upheld the judg
ment of District Judge Charlie N. Sul
livan of Big Spring, who denied the
injunction sought to stop the local
board desegregation order. Also up
held was Sullivan’s opinion that state
laws and the constitution must yield
if they conflict with the United States
Supreme Court’s anti-segregation de
cision.
In the Texas court’s main opinion,
Associate Justice Few Brewster
labeled as “utterly without merit” the
argument that Texas segregation laws
were unaffected by the U. S. Supreme
Court decision.
A concurring opinion by Associate
Justices Meade F. Griffin and Ruel C.
Walker added deletion of the Texas
Gilmer-Aikin school law’s segregation
provision leaves a “fully and com
pletely effective” method of financing
schools.
Atty. Gen. Shepperd had argued
that if a portion of the financing law
is invalid, the whole act is invalid
until revised by the legislature. The
court did not rule directly on Shep-
perd’s point that a restriction upon a
legislative appropriation cannot be
erased by court action.
EXPECT NO APPEAL
Gov. Shivers said that “develop
ments of the next few months will
dictate whether a special session of
the legislature will be necessary.” But
the court’s decision apparently headed
off any prospects for an early legis
lative session on the segregation ques
tion.
No appeal is expected from the
Texas Supreme Court’s opinion.
Atty. Carlton declared that the only
hope for victory in the Big Soring
case lay in the Texas Supreme Court.
An appeal to the U. S. Supreme Court
—which held segregation to be ion-
constitutional in the first place — is
considered futile.
Atty. Gen. Shepperd likewise took
the Texas court’s ruling as final.
“This settles the law in Texas on a
statewide basis, but integration will
still be a district-by-district matter,”
said Shepperd. “As attorney general
I will, of course, as I have in the past,
uphold the law as declared by the
court or such new laws on the subject
as may be passed by the legislature.”
SHIVERS COMMENT
Gov. Shivers pointed to the Dallas
case, where Negroes lost an applica
tion for immediate entry into white
schools.
The governor commented:
“Faced with a demand that colored
students be admitted to certain Dallas
schools, Judge (William H.) Atwell
held that the U. S. Supreme Court
had required school officials to work
out proper plans for desegregation,
but, while this is being done, ‘when
similar and convenient schools are
furnished to both white and colored
that there then exists no reasonable
ground for requiring desegregation.’
“In the light of these decisions, no
school district should feel compelled
to take hasty or unnecessary action.”
Justice Brewster wrote that Section
7, Article VII of the Texas constitu
tion and Article 2900 of the statutes
are unconstitutional “to the extent
that . . . they require segregation of
the white and Negro students in the
public schools.”
“It does not follow, however, that
(these articles) are unconstitutional
and void as applied to other subject
matter which by their terms they
were intended to cover.”
The constitutional article says:
“Separate schools shall be provided
for white and colored children, and
impartial provision shall be made for
both.”
Article 2900 of Texas law says white
and Negro children may not attend
the same schools.
The state court asserted that de
claring the two articles entirely un
constitutional “would destroy the
safeguards found therein which guar
antee equal and impartial provision
for students in schools not yet inte
grated.”
“No judgment which would lead to
that result should be rendered unless
it is necessary, and we find it unneces
sary,” wrote Judge Brewster.
LAW ANALYZED
The Court also analyzed Article
2922-13 of the Gilmer-Aikin laws. It
provides that payments based on at
tendance shall be “separate for whites
and separate for Negroes.” Brewster
referred to other sections of the same
law and concluded: “We find in the
act no language which would deny
the use of such funds to integrated
schools.”
The concurring opinion by Justices
Griffin and Walker agreed with the
majority view except on construction
of Article 2922-13.
The two judges said the law’s re
quirement for spending separately on
white and Negro schools is unconsti
tutional under the U. S. Supreme
Court’s decisions. But they said the
language “is severable and when ap
plied to a case of this character does
not affect or impair the validity and
operation of the remainder of the stat
ute.”
Parents of three Negro pupils in the
Mansfield, Tarrant County, Independ
ent School District filed suit in the
U. S. Supreme Court seeking admis
sion to the high school there.
The plantiffs said they are required
to travel 40 miles a day to attend high
school in Fort Worth, 20 miles from
Mansfield. They asked for an injunc
tion to abolish the Mansfield district’s
policy of keeping Negroes out of its
high school.
The case is styled Nathaniel Jack-
son, a minor, et al v. O. C. Rawdon,
president of the Mansfield trustees,
et al. It is set for hearing Nov. 7 be
fore U. S. District Judge Joe E. Estes
at Fort Worth.
WHAT THEY
-
Dr. Frederick Eby, long-time mem
ber of the College of Education fac
ulty, University of Texas, suggested
that the most intelligent Negro stu
dents should be put into white schools
first.
A long-time foe of segregation, Dr.
Eby said it must be recognized that
the average Negro pupil is unequal to
the average white student.
“Could even nine sage judges of the
Supreme Court of the United States
make all men equal in intelligence?”
asked Dr. Eby at the annual meeting
of the Texas Association of School
Boards.
The speaker added: “We must rec
ognize that the great majority of
Negroes haye not demanded integra
tion for the flegro.”
ASSOCIATE JUSTICE BREWSTER
Texas Race Bars Void
Dr. Eby said that present conditions
of overcrowding and teacher short
ages make desegregation an extra-
difficult problem.
The San Marcos school board re
vealed a problem which has come up
there. The Negro high school was
abolished this fall, and the students
permitted to attend the white high
school.
Now the board is faced with the
problem of policy on transferred stu
dents. San Marcos has accepted stu
dents from rural areas in the past.
The board now is concerned over
whether it must accept transfers of
all races if it accepts white transfers.
In Dallas, Supt. W. T. White asked
white and Negro parent-teachers as
sociations to study the possibility of
integrating their groups. He re
quested both PTA Councils to appoint
study committees and report to the
Dallas school board next spring.
The Dallas board declined to order
desegregation this year, but outlined
its program of areas to be studied in
making policies for the future. A fed
eral court in September declined to
order Dallas to admit Negro students
immediately.
At Garland, in Dallas County, Rus
sell T. Sanborn wrote letters to state
and federal officials complaining that
the Negro high school is inferior to
the white high school. He listed sev
eral courses taught at Garland High
which are not available to Negro stu
dents at Carver High.
Dr. W. R. Goodson, director of ac
creditation for Texas Education
Agency, reported that Carver High at
Garland “has a clear standing” after
completing a new building and mak
ing other improvements. He said it is
not necessary for every school to
teach the same courses in order to
have accredited standing.
Leslie J. White, executive secretary
of the Teachers State Association
(Texas Negro teachers group), said
five Negro teachers lost their jobs in
Texas this year through integration.
They were employed last year in
Karnes County, whose 120 Negro stu
dents now attend desegregated
schools.
A spokesman at Texas Education
Agency pointed out that the Negro
teachers in Karnes County did not
receive contracts for 1955-56 and
were notified last spring that the
schools might be integrated this fall.
At El Paso, Corpus Christi, San Mar
cos and other desegregated systems,
Negro teachers were given contracts
earlier and are being retained in this
school year, the spokesman said.
A survey conducted for the Uni
versity of Texas Student Ass«nbly,
using student interviewers, found few
operators of housing units stating
definitely they would accept Negro
students.
The board of regents has announced
that students will be accepted without
regard to race at all levels of the uni
versity in September 1956, subject to
aptitude tests to be given all new stu
dents. The tests are necessary to pre
vent overcrowding, the regents said.
The student survey committee
found that 11 of 131 housing units
contacted are willing to admit Neg
roes. Most of the others were non
committal.
Three of 16 restaurants in the uni
versity neighborhood will allow Ne
groes to eat there, but two said re
strictions may be imposed.
Academic organizations, not main
taining houses, reported almost
unanimously that Negroes will be ac
cepted. Only two out of 47 indicated
reluctance to admit Negroes.
Negroes are being admitted now to
all-university dances, sponsored f 0r
all students, and are allowed to at
tend other functions without seating
restrictions. Negroes now are enrolled
in graduate and professional courses
at the University of Texas.
At Southern Methodist University
a panel sponsored by the National As
sociation of Christians and Jews, ap
proved desegregation in the South.
This is a direct appeal in an action
for a declaratory judgment as well as
an injunction, filed by R. E. McKin
ney, Ted O. Groebe, John W. Currie,
and Roy Bruce, residents of Big
Spring, Texas, and McKinney and
Bruce as representatives of a group
organization of Dallas, Dallas County,
as plaintiffs; against Clyde Angel, R.
W. Thompson, Tom McAdams, Omar
Jones, Robert Stripling, and John
Dibrell, composing the Board of
Trustees of Big Spring Independent
School District, W. C. Blakenship,
superintendent of Big Spring Inde
pendent School District, J. W. Edgar,
state commissioner of education, and
R. S. Calvert, comptroller of public
accounts, as defendants.
Appellants alleged in their petition
that the board of trustees of Big
Spring School District had made and
entered an order integrating white
and Negro students in grades one
through six in the elementary schools
of the district. They sought an injunc
tion to restrain the allocation or
expenditure of public free school
funds in any manner inconsistent
with and contrary to the provisions
of Section 7 of Article VII, Constitu
tion of Texas, Article 2900, Revised
Civil Statutes of Texas, and Section 1
of Article 2922-13, Vernon’s Anno
tated Texas Civil Statutes. They also
sought a declaratory judgment de
claring that the foregoing constitu
tional and statutory provisions were
valid and enforceable, and declaring
the rights, duties and obligations of
the defendants thereunder. In their
answer to the petition the board of
trustees and superintendent of Big
Spring School District also asked a
declaratory judgment declaring their
rights, duties and legal obligations
“under all appropriate and applicable
laws and statutes.” The attorney
general of Texas intervened and
aligned the state with the plaintiffs
except in so far as the state commis
sioner of education and the comp
troller of public accounts were con
cerned.
The trial court denied the injunc
tion and by its judgment declared
unconstitutional and void Section 7
of Article VII of the Constitution,
Article 2900, R.C.S., and certain lan
guage, to be noted later, of Section
1 of Article 2922-13. It then declared
the remaining portions of Article
2922-13 valid and enforceable.
Appellants’ first three points of
error assert that the trial court
should have granted the injunction
to restrain the various defendants
from certifying, paying and expend
ing public free school funds in any
manner inconsistent with the consti
tutional and statutory provisions.
The duties of the commissioner of
education to certify the funds to
which a school district is entitled and
of the state comptroller to issue and
transmit warrants therefor are purely
ministerial and mandatory ... The
injunction against these parties was
properly denied. To this all parties
agree.
As to the other defendants, the
trial court’s judgment was undoubt
edly predicated on the decision of the
Supreme Court of the United States
in Brown v. Board of Education of
Topeka, Kansas... Rejecting the doc
trine “separate but equal,” announced
in 1896 in Plessy v. Ferguson... the
Supreme Court held ... that separate
educational facilities are inherently
unequal, and that, therefore, the
plaintiffs and others similarly situated
for whom the four suits were brought
had been, by reason of their segrega
tion, deprived of the equal protection
of the laws as granted by the
Fourteenth Amendment.
In its final decree the court said it
had declared in its original opinion
“the fundamental principle that ra
cial discrimination in public educa
tion is unconstitutional,” and it then
proceeded to declare that “all pro
visions of federal, state or local law
requiring or permitting such dis
crimination must yield to this prin
ciple.”
•
At the threshold of our considera
tion of the issues in this case we are
met with the argument that since the
constitutional and statutory pro
visions requiring segregation in Texas
schools were not before the Supreme
Court in the Brown case they were
not condemned, and we should hold
them valid and enforceable. That
proposition is so utterly without merit
that we overrule it without further
discussion ...
Section 7 of Article VII of the Con
stitution and Article 2900 of our
statutes, declared unconstitutional
and void by the trial court, read as
follows:
“Sec. 7. Separate schools shall be
provided for the white and colored
children, and impartial provision
shall be made for both.”
“Article 2900. All available public
school funds of this state shall be
appropriated in each county for the
education alike of white and colored
children, and impartial provision
shall be made for both races. No
white child shall attend schools sup
ported for colored children, nor shall
colored children attend schools sup
ported for white children. The terms
‘colored race’ and ‘colored children',
as used in this title, include all pe r "
sons of mixed blood descended from
Negro ancestry.”
To the extent that these constitu
tional and statutory provisions re
quire segregation of white anc ^
Negro students in the public schools
they are unconstitutional and void
and cannot stand as a bar to the ex
penditure of public funds in i nte "
grated schools. It does not followj
however, that Section 7 of Article Vn
of the Constitution and Article 2900
of the statutes are unconstitutional
and void as applied to other subject
matter which by their terms they
were intended to cover.
Even a casual reading of Section 1
of Article Vn of the Constitution
and Article 2900 of the statutes * ‘
make clear that they have a two-f°
purpose: They require segregation o
white and Negro students in the pu b
lie schools of this state, and the!
require that equal and impartial Pt°
vision be made for the education
both. The extent of their invalid 1 ^
should be determined in the HSj 1 * .
what was said by the Supreme Co
of the United States as limited by
facts of the cases before it. When
language of the court is so limited
will be evident that what the ,
condemned as unconstitutional
void, and all it condemned, was
stitutional, statutory, and 1°®®* uj
provisions which require or P®
forced segregation through a n
governmental officers and agenci
The Supreme Court did not d
immediate and complete integr 8 ^
in all schools. To declare Section .
Article VI of the Constitution
Article 2900 of the statutes unco
tutional and void in their en .
would destroy the safeguards
(Continued on Page 7)